Date Issued: September 16, 2020

File: ST-2020-002878

Type: Strata

Civil Resolution Tribunal

Indexed as: Chen v. Cogan, 2020 BCCRT 1041

Between:

HAOHAN CHEN

Applicant

And:

RICHARD COGAN

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell, Vice Chair

INTRODUCTION

1.    This dispute is about a water leak.

2.    The applicant, Haohan Chen, and the respondent, Richard Cogan, each own strata lots in a strata corporation, The Owners, Strata Plan NW 308 (strata).

3.    The strata plan shows that Mr. Chen’s strata lot (unit 115) is immediately below Mr. Cogan’s strata lot (unit 215).

4.    Mr. Chen says a leak occurred in Mr. Cogan’s kitchen in May 2019, which caused water to enter unit 115 through the ceiling. Mr. Chen says the strata charged him $2,715.34 for emergency restoration services, and he also paid $1,732.50 to repair his kitchen ceiling.

5.    Mr. Chen says Mr. Cogan is responsible for these expenses, and requests an order that Mr. Cogan reimburse him $4,447.84 ($2,715.34 plus $1,732.50).

6.    Mr. Cogan says a plumbing invoice in evidence shows that the leak was caused by pin holes in the hot water riser pipe supplying units 115, 215, and 315. He says the riser pipe is common property, so he is not responsible.

7.    Mr. Chen and Mr. Cogan are both self-represented in this dispute. The strata is not a party.

8.    For the reasons that follow, I dismiss Mr. Chen’s claims and this dispute.

JURISDICTION AND PROCEDURE

9.    These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The CRT must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.

10. The CRT has discretion to decide the format of the hearing, including in writing, by telephone, videoconference, or a combination of these. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

11. The CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The CRT may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.

12. Under section 123 of the CRTA and the CRT rules, in resolving this dispute the CRT may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.

13. In his submissions to the CRT, Mr. Chen raised arguments about the strata’s decision to charge back repair expenses to his strata lot. These arguments include the strata’s authority for the charge back, and the amount charged. Mr. Chen did not name the strata as a party to this dispute. For that reason, I make no findings in this decision about the strata’s charge back. Nothing in this decision prevents Mr. Chen from filing a dispute against the strata.

ISSUE

14. The issues in this dispute are:

a.    What caused the May 2019 leak?

b.    Must Mr. Cogan pay Mr. Chen $4,447.84 for water damage repairs?

BACKGROUND AND EVIDENCE

15. I have read all the evidence provided but refer only to evidence I find relevant to provide context for my decision. In a civil proceeding like this one, Mr. Chen as applicant must prove his claims on a balance of probabilities.

16. The strata was created in 1975, and consists of 47 residential strata lots in a 3-storey building.

17. The parties agree that a leak occurred in May 2019, which caused water to enter unit 115, resulting in damage. An October 31, 2019 letter from the strata to Mr. Chen shows that the strata charged the $2,715.34 invoice for restoration services by Platinum Pro-Claim Restorations (Pro-Claim) back to Mr. Chen’s strata lot account. The letter said that since the charge was below the strata’s insurance deductible amount, the cost of the repairs was Mr. Chen’s responsibility.

REASONS AND ANALYSIS

What Caused the Leak?

18. Mr. Chen says the leak was caused by a water escape in the unit 215 kitchen. He says he first noticed a water stain on his kitchen ceiling on May 28, 2019, and reported it to the strata’s property manager. Mr. Chen says the leak became worse on May 30, 2019. Mr. Chen says Mr. Cogan is responsible for the leak repair costs, and should have made a claim on his homeowner’s insurance.

19. In contrast, Mr. Cogan says the leak was caused by the failure of a common property hot water riser pipe. He says the pipe developed pin holes, which allowed water to spray inside his kitchen ceiling. He says that since the leak arose from common property, he is not responsible for any costs of repairing Mr. Chen’s strata lot.

20. I find the evidence before me establishes that the leak came from a common property pipe. My reasons follow.

21. Pro-Claim’s records show that it attended the strata building on May 28, and at various times from May 30 to June 4, 2019. Pro-Claim’s May 29, 2019 incident report states that the suspected cause of the loss was a pipe in the kitchen ceiling of unit 215. The report says the walls and ceiling of unit 215 were wet, and attached photos show that part of the ceiling drywall had been removed to access a pipe.

22. Pro-Claim’s report also says there was a secondary problem in unit 115, as a 1 foot square area of the bathroom ceiling above the shower was saturated. Pro-Claim said it believed this was a separate problem from the kitchen, as the floor and ceiling between the kitchen and bathroom were dry.

23.  The strata hired a plumbing company, A-1 Drainage Plumbing & Heating Ltd. (A-1). A June 3, 2019 email from A-1 to the strata’s property manager states as follows:

•         A-1 attended the strata building on May 27 and May 30, 2019 to deal with reported leaks.

•         On May 27, 2019, A-1 found water “pouring from the ceiling” in unit 215’s kitchen.

•         A-1 removed part of the ceiling to trace the leak, and located a pin hole on the domestic hot water (DHW) pipe supplying units 215 and 315.

•         The pin hole was located ½ inch from the plywood inside the ceiling, so the pipe would need to be cut from under the kitchen sink in unit 315.

•         A-1 installed a temporary “snugger clamp” to stop the leak.

•         A-1 found a second pin hole on the 1 ½ inch DHW supply pipe in the corridor outside unit 215.

•         On May 30, 2019, A-1 attended unit 115 and found that an existing pin hole repair in the ceiling above the bathtub had started leaking again. The pin hole was located where the pipe goes into the hallway wall.

•         A-1 installed a new snugger clamp.

24. I find the reports of Pro-Claim and A-1 are consistent. They both report the same source and location of the kitchen leak in units 115 and 215, and they both identify the leak in the unit 115 bathroom ceiling as a separate problem. I am persuaded by these reports, as they were written based on the information collected by technicians who observed the site and investigated the source of the leaks at the time they occurred.

25. I find that the Pro-Claim and A-1 reports establish that the leaks into unit 115 were caused by pin holes in hot water pipes located in the ceiling.

26. Mr. Chen says these pipes are not common property. I find the evidence, and the SPA, establish that they are common property.

27. Strata Property Act (SPA) section 1(1) specifically addresses pipes. It says, in part, that “common property” includes pipes for the passage or provision of water if they are located within a floor, wall, or ceiling that forms a boundary:

a.   between a strata lot and another strata lot,

b.    between a strata lot and the common property, or

c.    between a strata lot or common property and another parcel of land, or

28. I find that the leaking hot water pipes described by Pro-Claim and A-1 were located in the ceilings that formed boundaries between strata lots. I therefore conclude that they are common property.

Is Mr. Cogan Responsible for the Leak?

29. The SPA and the strata’s bylaws do not contain provisions that specifically address water damage and associated repairs as between strata lot owners. Bylaw 2.1 states that an owner must repair and maintain their strata lot, except for repair and maintenance that is the responsibility of the strata corporation. Under SPA section 72, the strata is responsible to maintain and repair common property.

30. Since the leaks into unit 115 were caused by holes in common property pipes, I find Mr. Cogan is not responsible to pay any costs charged to or incurred by Mr. Chen for leak repairs. He was not responsible to maintain or repair those pipes, and is not responsible for the leaks. I therefore dismiss Mr. Chen’s claims, and this dispute.

31. As stated above, since the strata is not a party to this dispute, I make no findings about whether it is responsible for repairs to unit 115, or whether its charge back was appropriate. Nothing in this decision prevents Mr. Chen from filing a dispute against the strata.

CRT FEES AND EXPENSES

32. Under section 49 of the CRTA, and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule.

33. Mr. Cogan is the successful party. He paid no CRT fees and claimed no dispute-related expenses. I therefore do not award them to any party.

ORDER

34. I dismiss Mr. Chen’s claims and this dispute.